Amrita Lall Mitter v. Manick Lall Mullick And Others.

Ameer Ali, J.:— This is a suit for partition. The Plaintiff is a purchaser from one of the sons of Chooney Lall Mullick, who died in 1892 leaving four sons, Manick Lall Mullick, Gopessur Mullick, Johur Lall Mullick and Amrita Lall Mullick, and a widow Sreemutty Nrittomoni Dassee. He left a house No. 3/2, Gopal Chandra's Lane, the partition of which is sought in this suit, and it appears on the evidence that this is the only property he left. The share of Johur Lall Mullick has come to the Plaintiff Amrita Lall Mitter by virtue of a sale under a mortgage decree. The sale certificate has been put in. The share of Gopessur has come into the hands of the Ghose Defendants under a sale certificate which also has been put in. The Plaintiff seeks to have a partition of the property, and his contention is that he is entitled to a one-fourth share in spite of the fact that the widow of Chooney Lall Mullick is alive and is entitled under the law to a share of the ancestral property upon a partition of the same among the sons of the original holders. The question has been argued with considerable ingenuity on behalf of the Plaintiff and the Ghose Defendants, and it has been suggested that the right of a mother to obtain a share upon partition comes into existence when the partition takes place among the sons; when a share is conveyed by the son to a purchaser the right of the mother does not follow that share. That in substance I understand to be the argument. But it is further contended that it is only in case of fraud on the part of a son of which the purchaser has cognisance, that any question relating to the share of the mother can arise. The effect of acceding to this contention would be to reduce the provision of the law, by which the mother becomes entitled to a share, to a nullity.

Two cases were cited, Juggernath Savrnnt v. Maharanee Odhiranee Narain Koomaree and Sorolah Dassee v. Bhoobun Mohun Neoghy in order to support the contention. The language of the learned judges in those cases was strained, I think, for the purpose of inferring a principle in support of the contention. In my opinion the expressions used by those learned judges must be read with the facts with which they were dealing.

The case really in point with the present case is that of Jogendra Chunder Ghose v. Fulkumari Dassee. Both Mr. B.C Mitter and Mr. Ckakravarti respectively on behalf of the Plaintiff and the Ghose Defendants tried to argue that the views expressed by Banerjee, J., in that case were mere obiter.

In my opinion, the dictum of a judge of his learning and intimate knowledge of Hindu law would have considerable weight even if it went beyond the requirements of the case itself, but in the case to which I am referring the views expressed by the Chief Justice and Banerjee, J., are decisive on the point and not merely obiter.

The learned Chief Justice points out that there were two points in the case.

(1) Whether or not the purchaser from a Hindu son stands on the same position as the son himself.

(2) Whether in that particular case a transfer having been made after a partition suit the purchaser was not bound.

The Chief Justice as well as Banerjee, J., held on both these points against the very contention in this case. They first dealt with the general principle and then with the facts.

The second point does not arise in the case before me. I have to deal with the first point only. I may say I have given the case my best consideration. I can only express my entire concurrence with the view of the law taken in Jogendra Chunder Ghose v. Fulkumari Dassee. To put it shortly, in the language used by the learned Chief Justice, the position of a purchaser from a son is exactly that of a son himself. He has the same rights and takes it subject to the same liabilities as those of the person from whom he purchased. And as a mother is entitled under the law to be maintained out of the joint-family property, if anything is done affecting that right, for instance by the sale of any particular share by any of her sons, her right comes into existence.

That being my view I hold the Plaintiff is entitled to a one-fifth share as purchaser from Johur Lall Mullick, and the Ghose Defendants to a one-fifth as purchasers of Gopessur's share, Manick and Amrita to a one-fifth each and Nrittomoni to the remaining one-fifth for her life; after her death the sons and purchasers would be entitled to her share. I make a declaration to that effect and the usual decree for partition.

Mr. Bose asks that Mr. B.C Mitter's clients should pay his costs.

Mr. B.C Mitter.—The case was on the undefended list. They have incurred no costs.

The Court.—I do not think I will make any order as to costs.

Babu Amar Nath Ghose, Attorney for the Plaintiff.

Mr. A.C Bose, Attorney for the Ghose Defendants.

Babu Cham Chunder Bose, Attorney for Nrittomoni Dassee.

S.R.D